Canadian Judge: Omar Khadr’s Brother Was Illegally Held and Interrogated

Omar Khadr is set to go on trial starting Monday, August 9.

Today, his brother went free in Canada.

A judge ruled that he could not be extradited to the US because the confessions on which his extradition request was based had been collected when he was illegally held and interrogated in Pakistan.

Abdullah Khadr walked out of a Toronto courtroom a free man Wednesday after an Ontario judge denied a U.S. request to send him to Boston to face terrorism charges.


Reading passages from his 62-page decision, [the judge in the case, Christopher] Speyer told a Toronto court that setting aside the extradition order was a “remedy of last resort” required in this case due to the fact that Khadr was illegally held and interrogated.

Khadr’s lawyers Nathan Whitling and Dennis Edney had argued that extraditing Khadr would mean Canada supports countries that violate international law.

Pakistan was paid a $500,000 (US) bounty to arrest Khadr in 2004. He was held without charges for 14 months and interrogated by intelligence and police agents from the U.S., Pakistan and Canada.

The Boston case against the 29-year-old Khadr was based on his own statements made in Pakistan and then repeated in Toronto upon his return in 2005.

Abdullah Khadr, like his brother Omar, said he made the confession only after suffering from abuse.

This decision may be appealed. But for the moment, Abdullah Khadr’s fate sets up an interesting contrast with the likely fate of his brother before the Gitmo show trials.

Omar Khadr Condemns the Military Commissions

Carol Rosenberg, recently freed from her arbitrary banning at Gitmo, posts this picture of a statement Omar Khadr read aloud in court today explaining why he wants to boycott any further proceedings. [my transcription; I’ve added punctuation but not changed spelling]:

Your honor, I’m boycotting this military commission because:

  • Firstly, the unfairness and unjustice of it. I say this because not one of the lawyers I’ve had, or human right organization or any person say that the commission is fair, or looking for justice, but on the contrary they say it is unfair and unjust and that it has been constructed solely to convict detainees and not to find the truth (so how can I ask for justice from a process that does not have it or offer it?) [new color ink–apparently added later] and to accomplish political and public goal and what I mean is when I was offered a plea bargain it was up to 30 years which I was going to spend only 5 years so I asked why the 30 years? I was told it make the US government look good in the public eyes and other political causes.
  • Secondly, the unfairness of the rules that will make a person so depressed that he will admit to alligations or take a plea offer that will satisfy the US government and get him the least sentence possible and ligitimize the show process. Therefore I will not willingly let the US gov use me to fullfil its goal. I have been used to many times when I was a child and that’s why I’m here taking blame and paying for thing I didn’t have a choice in doing but was told to do by elders.
  • Lastly I will not take any plea offer or [several words redacted] because it will give excuse for the gov for torturing and abusing me when I was a child.

In some of her tweets, Rosenberg said the judge has proposed reconvening on the suppression hearing August 9 and moving forward with the trial in October.

Update: Corrected post to note that Khadr read this aloud. Also note Rosenberg’s latest:

Guantanamo prosecutor: Omar Khadr is trying to mock the war court. Judge notes the Canadian did try to fire his lawyers this time last year

God forbid anyone mock our kangaroo court. Follow Rosenberg on twitter yourself here.

Update: Here’s Rosenberg’s article on today’s hearing.

DOD Allows Carol Rosenberg to Return to Gitmo Next Week

There are two pieces of good news in this McClatchy story reporting that Carol Rosenberg, one of four journalists banned from Gitmo because she published the previously reported name of Omar Khadr’s first interrogator, Joshua Claus, will be allowed to return next week rather than after August 5, as they had previously decided. The first piece of good news is that Rosenberg, easily the best and most experienced Gitmo reporter out there, will be back on the job.

The Pentagon on Thursday reversed its ban on a Miami Herald reporter from covering military commissions at Guantánamo Bay, Cuba, and said the reporter can return to the naval base there to cover a hearing next week.

The other piece of good news is that McClatchy appears uncowed by DOD’s efforts to intimidate. The story reports precisely the piece of news for which Rosenberg got banned in the first place!

Before a May hearing, Rosenberg and the three Canadian journalists published the name of a witness that the government had said should be identified as “Interrogator No. 1.” The name of the witness, former Army Sgt. Joshua Claus, had been known for years after he voluntarily gave a newspaper interview to one of the banned Canadian reporters denying that he had abused Khadr.

Claus also had been convicted by a U.S. court martial of abusing detainees in Afghanistan and sentenced to five months in prison. [my emphasis]

So much for DOD’s efforts to prevent readers from learning that the same guy that threatened Khadr with rape was convicted in association with Dilawar’s death.

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Press Groups Call Gitmo Banning Prior Restraint

“Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity” … The Government “thus carries a heavy burden of showing justification for the imposition of such a restraint.” SCOTUS Pentagon Papers Decision

A coalition of press outlets have written DOD General Counsel Jeh Johnson, calling that the banning of four Gitmo reporters for publishing the name of Omar Khadr interrogator Joshua Claus an unconstitutional example of prior restraint.

In a letter to Pentagon General Counsel Jeh Johnson, the organizations argue that the Pentagon’s interpretation of the rules is “plainly illegal” because it bars publication of information considered “protected” even if the information is already widely known and publicly available.

Such a restriction is “a ‘classic example’ of a prior restraint” that “the Supreme Court repeatedly has refused to allow . . . even in the name of national security,” the organizations said.

The organizations include McClatchy Newspapers, which owns The Miami Herald and 30 other newspapers, The Associated Press, Dow Jones & Co., The New York Times, Reuters and The Washington Post.


“There must be a sufficiently strong, legitimate government interest before a contractual condition may legally restrict a citizen’s First Amendment rights,” attorney David Schulz wrote on the news organizations’ behalf. “As demonstrated above, no such legitimate interest justifies the overly broad censorship imposed by the ground rules.”

The news organizations are also taking issue with the way DOD reviews and deletes images for classification reasons.

What’s particularly interesting about this challenge, IMO, is how the timing is going to work out. As the article notes, DOD has agreed to lift the ban on the four reporters on August 5 (though I believe the reporters will have to “reapply” for credentials, providing one more opportunity for mischief).

The Pentagon has agreed to lift the ban on the four reporters on Aug. 5. That, however, isn’t enough, the organizations said, noting that the hearing the reporters were covering resumes on July 12.

That is, in a show of faux-reasonableness, DOD has agreed to let the three best Canadian Gitmo reporters and the best Gitmo reporter, period, apply for credentials again on August 5. But, as the article makes clear, that means the journalists won’t be able to attend “the hearing the reporters were covering” which starts up again in a week. Canada’s best Khadr reporters and Carol Rosenberg will be able to reapply to cover Khadr’s actual trial, but they won’t be able to cover the rest of his suppression hearing, which reconvenes on July 12.

That hearing, of course, concerned whether or not Omar Khadr’s confessions should be thrown out because of abuse he suffered at the hands of his interrogators.

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Even the Crusades Weren’t “Forever”

I’m going to assume John Cole was asking sincerely when he posted this request.

Can someone explain this reaction from Emptywheel:

After prompting Kagan to deliver the standard justification for detaining enemy combatants during war and rewarding her with a condescending compliment, Lindsey starts by getting Kagan to agree that the war on terror will never end.

Lindsey: [Speaking of her rote recitation of the basis for indefinite detention] That’s a good summary. The problem with this war is that there will never be a definable end to hostilities, will there?

Kagan: [Nodding] That is exactly the problem, Senator.


What a breath-taking exchange! Rather than challenge Lindsey on his slippery definition (referring to “hostilities” rather than war), rather than challenging him on the premise, Kagan simply nods in agreement. One minority party Senator and the Solicitor General sat in a hearing today and decided between them the state of hostilities under which the Executive Branch has assumed war-like powers to fight terrorism will never end.

The police state will continue forever.

Maybe I am misinterpreting these remarks, and you have to watch the video, but didn’t Kagan just say it is a bad thing that we are currently engaged in never-ending hostilities? Don’t we agree that is a bad thing? Isn’t Kagan right? What should she have said?

The question of whether the GWOT will have a “definable end” that justifies indefinite detention means two things in practical terms. First, how long will a state of war exist that justifies our holding of 48 Gitmo detainees who can’t otherwise be prosecuted. And second, how long will a state of war exist that justifies holding people at Bagram, including bringing them to Afghanistan after being captured in other locations, for indefinite detention.

48 Gitmo detainees

So how long will we have a legal claim–both within US and international law–to justify holding the 48 detainees at Gitmo that we currently can’t charge but deem too dangerous to release?

As I pointed out in this post, the Gitmo Review Task Force Report provided the following reasons why we can’t charge these men:

  • At least some of these detainees can’t be charged because evidence against them is tainted (this probably includes people like Mohammed al-Qahtani and Abu Zubaydah).
  • For others, we only have evidence they were members of al-Qaeda, and not that they engaged in any actual terrorism against the United States, even including actions taken after October 2001 which might be legally considered self-defense but which in some cases (such as with Omar Khadr) we’ve chosen to label as terrorism. If these people had engaged in the same activities for which we’ve got evidence after October 2001–and especially after December 2004–we might be able to charge them, but they haven’t.
  • For a number of these men, we had evidence that we could have used to charge them with material support for terrorism but held them so long without charges that the statute of limitations has expired.
  • For some of these men, we purportedly could have charged them with material support, but did not because of “sentencing considerations,” which I take to mean we believed that the 15 year maximum sentence was too short, and so have not charged them (note, the Obama administration has not gone to Congress and asked for a change to this sentence).

Given that we can’t try these men, we are instead justifying holding them under the law of war. As Kagan explained,

Under the traditional law of war, it is permissible to hold an enemy combatant until the end of hostilities and the idea behind that is that the enemy combatant not be enabled to return to the battlefield.

And, as she made explicit elsewhere in this exchange and repeatedly during her hearings, our ability to invoke the law of war depends on our ability to invoke the AUMF passed after 9/11, which states,

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. [my emphasis]

We can only legally use this justification against people who either by themselves aided 9/11, or were members of an organization or nation that aided 9/11.

Now, we’re already pushing this, as the government’s lousy 14-36 record on habeas cases makes plain. For example, the Gitmo Task Force claimed the ability to hold people who simply have a “history of associations with extremist activity” without requiring that they have actually either membership in al Qaeda or direct participation in 9/11.

But to envision that the hostilities authorized by the AUMF will not end, you have to envision both that the  al Qaeda and affiliates that existed at the time of 9/11 will exist indefinitely, and/or that we will remain at war against the Taliban forever.  In some cases, this is obviously not going to be the case. Hamid Karzai is already talking about bringing Gulbuddin Hekmatyar into government. If he does so, will we still have justification to hold the members of Hezb-e-Islami Gulbuddin who are among the 48? Discussions about a deal with the Taliban are less optimistic, but if we really do withdraw in 2011, will we still have the basis to hold the Taliban members who are among the 48? If we kill or capture Osama bin Laden and Ayman al-Zawahiri, will we still claim holding someone who served as OBL’s guard in 2001 is too dangerous to release?

But even the al Qaeda and affiliates described in the AUMF seem to have a definite endpoint. After OBL and Zawahiri are gone and we’ve managed to kill our 217th “al Qaeda Number 3” will we still be able to say that the al Qaeda that hit us on 9/11 still exists? At some point, judges are going to consider the al Qaeda copycat groups that pop up in various locales to be too tenuously connected to the al Qaeda of 9/11 to be meaningfully the same group anymore.

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Obama Administration Defends Stupid Counterterrorism Decisions, Again

Only this time, those decisions were made by his own Administration:

The Department of Defense said Monday it acted correctly when it barred three journalists, including Miami Herald reporter Carol Rosenberg, from covering military hearings at Guantánamo Bay.

But it left open the door to reinstating the reporters.

David A. Schulz, the attorney representing Rosenberg and reporters from Canwest News Service and the Toronto Star, had asked for a reversal of the coverage ban. The exclusion also affects a fourth reporter from The Globe and Mail who appealed independently.

“It is my determination that officials of the Department were correct to take the actions they did against these three individuals,” Bryan G. Whitman, principal deputy assistant secretary of defense for public affairs, wrote Monday in a letter to Schulz.

The stupid counterterrorism decision, of course, was to ban four journalists–including one who wrote a book on Omar Khadr and another with by far the most expertise on Gitmo–because they published the name of Joshua Claus. The seem to think people are too dumb to discover this stuff on their own. And it appears they’d like to avoid admitting that a guy who was convicted in relation to the death of Dilawar also implicitly threatened rape and death with Khadr. As a result, one of those acts which would, if done correctly, win some credibility with those we’re trying to persuade, is instead made out to be a kangaroo court where reporters are asked to purge their mind of all relevant knowledge when they walk in the trial room.

[Hi there Wheelheads, bmaz here – I am about to board the plane and Marcy is already in the air. We are going to San Francisco to cover closing arguments in the Prop 8 Gay Marriage case. You all behave, and keep the joint tidy. If there is WiFi in the plane I will post from there. Otherwise hoop it up and don’t completely drain the liquor cabinet]

Task Force Conclusion: “Many” Detainees Were Legally Detained

While I was away celebrating my 20th college reunion this weekend (thanks for filling in, bmaz), the WaPo liberated the Gitmo Review Task Force report. As the WaPo reported, the big takeaway is the government’s admission that over 55% of those reviewed by the Task Force were what it called “low level fighters” in al Qaeda, the Taliban, or “associated groups.” The claim itself is not all that credible–and that doesn’t include some of the 20% whom the Task Force described as having some organizational role in al Qaeda but might just mean they’re one of Osama bin Laden’s seemingly infinite number of bodyguards. Just 10% were the “worst of the worst” that Gitmo was supposed to hold (the report did not name Abu Zubaydah among those, for example).

All of which might explain why the report was so desperate to claim that detaining these men all these years–well, “many” of them, anyway–wasn’t illegal.

For many of the detainees approved for transfer, however, the review participants found there to be reliable evidence that the detainee had engaged in conduct providing a legal basis for his detention.

No word about the others who have been detained for up to 8 years for whom the Task Force found no legal basis to hold.

Similarly, the report implies that torture was not why the government cannot prosecute “most” of the 48 detainees it has slated for indefinite detention.

Notably, the principal obstacles to prosecution in the cases deemed infeasible by the Task Force did not stem from concerns over protecting sensitive sources or methods from disclosure, or concerns that the evidence against the detainee was tainted. While such concerns were present in some cases, most detainees were deemed infeasible for prosecution based on more fundamental evidentiary and jurisdictional limitations tied to the demands of a criminal forum, as described above.

It describes those jurisdictional limitations this way:

Second, many of the detainees cannot be prosecuted because of jurisdictional limitations. In many cases, even though the Task Force found evidence that a detainee was lawfully detainable as part of al-Qaida–e.g., based on information that he attended a training camp, or played some role in the hierarchy of the organization–the Task Force did not find evidence that the detainee participated in a specific terrorist plot. The lack of such evidence can pose obstacles to pursuing a prosecution in either federal court or a military commission. While the federal material support statutes have been used to convict persons who have merely provided services to a terrorist organization, e.g., by attending a terrorist training camp, there are potential limitations to pursuing such a charge against the detainees. 21

21 Among these limitations: First, the two relevant statutes–18 USC 2339A and 2339B–were not amended to expressly apply extraterrorially to non-US persons until October 2001 and December 2004, respectively. Thus, material support may not be available as a charge in the federal system unless there is sufficient evidence to prove that a detainee was supporting al-Qaida after October 2001 at the earliest. Second the statute of limitations for these offenses is typically eight years (see 18 USC 3286), which may bar prosecution for offenses that occurred well before the detainee’s capture. Third, because the statutory maximum for material support is 15 years (where death does not result from the offense), sentencing considerations may weigh against pursuing prosecution in certain cases. Some of these considerations would not apply to material support charges brought in the military commissions; however, the legal viability of material support charges brought in the military commission system has been challenged on appeal in commission proceedings.

Let’s take a moment to lay out what these passages all suggest, but don’t admit candidly:

  • “Concerns” about tainted evidence explained why at least “some” of these people cannot be prosecuted. I take that as a shorthand admission that these men–or their accusers–were abused in US custody. And the solution, apparently, is to just keep them in custody. The report doesn’t say how the government can trust the evidence itself if it is tainted. I guess they just know.
  • For a significant number of the 48 men slated for indefinite detention, there is no evidence that the man participated in terrorism. Indeed, given the description, it appears there isn’t even any evidence the man took part in an attack on American troops (even granting the government claim that all such attacks were necessarily illegal and not self-defense, which is itself bogus). And given the timing implied by the October 2001 deadline, there’s not even any evidence these men continued their affiliation with Al Qaeda after 9/11 made it clear the organization was attacking US civilians. In short, a significant number of these 48 men are just like the mujahadeen the US used to fund in the glorious Reagan days. But in the glorious post-9/11 days, such actions qualify a man for indefinite detention.
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Squabble in Administration over Rule of War, Khadr, Drones

Steven Edwards, one of the four journalists banned from Gitmo for reporting publicly available information, has an important story on squabbles within the Obama Administration about what should be in the recently updated Gitmo military tribunal manual. At issue is whether actions like Khadr’s alleged crime–throwing a grenade during active warfare–should be included.

The officials sought to strip a new commissions manual of a law-of-war murder definition that is central to Khadr’s prosecution in the mortal wounding of Special Forces Sgt. First Class Chris Speer during a 2002 firefight in Afghanistan, insiders say.

Omission of the segment could have also obliged prosecutors to trim or abandon “up to one-third” of its cases, according to one inside estimate.

In a turf battle familiar from the Bush Administration, the dispute pits State–Harold Koh–against DOD–General Counsel Jeh Johnson.

U.S. Defence Secretary Robert Gates signed off on the manual with the contested “comment” intact after Jeh Johnson, his legal adviser, went head-to-head with Koh, one official recounted.

“Harold Koh doesn’t have any authority over the defence department,” said this official. “The general counsel of DOD was fighting Koh on it; he advises Secretary Gates . . . who is going to follow his own lawyer.”

Of particular interest, Koh appears to have shared the concerns laid out here–that if we treated Khadr’s alleged attack as a war crimes violation, it would put our own use of drones in the same category (though I imagine it is in that category in any case).

Along with Koh, two OLC attorneys opposed the inclusion of murder in the manual. From the sounds of things, others in the Obama Administration overrode these two OLC attorneys. Which I guess is a lot easier to do when there’s no Assistant Attorney General at OLC to champion such battles. One more benefit to the unilateralists of scotching Dawn Johnsen’s nomination, I guess. But it does raise questions about whether OLC under Obama has gotten even more politicized than under Bush?

One more note before I send you off to read the whole thing. This article doesn’t mention Daniel Meltzer, the Deputy White House Counsel who resigned earlier this month to spend more time with his law students. But the timing of it would certainly line up.

Updated: Corrected reference to specific OLC lawyers–my post went beyond what Edwards wrote in his story.

Banned Gitmo Reporters Appeal

McClatchy provides details of the appeal the outlets for four reporters banned from Gitmo for publishing the name of Joshua Claus have made to the Pentagon.

Arguing that a Pentagon order banning four journalists from covering military commissions at Guantánamo Bay was illegal and unconstitutional, The Miami Herald and two Canadian news outlets appealed on Wednesday.


In a letter to Bryan Whitman, deputy assistant secretary of defense for media operations, [David A.] Schulz [who represents the Canadian papers involved] said the law that created the military commissions leaves such decisions up to a judge.

Further, the reporters did not obtain the name of the witness at the hearing, and it serves no military purpose to ban someone from publishing information that’s already public, Schulz argued.

“Our position remains unchanged: We did not violate any of the court rules for being at Guantánamo,” said Miami Herald Managing Editor Aminda Marques Gonzalez. “I feel confident that once they review the facts that they are going to come to the same conclusion and reverse the order.”

Though I do hope the Canadians are pressuring the Administration about expelling the most knowledgeable Canadian journalists on the Omar Khadr case.

Joshua Claus: The Rape Threat and the Dead Detainees

Jim White catalogued some of the hesitancy among the traditional media (and, frankly, the blogosphere) to highlight the precise piece of news that DOD banned four reporters from Gitmo over: the name of the witness dubbed Interrogator #1 who testified at the Omar Khadr hearing the other day, Joshua Claus. Kudos to HuffPo and CNN for refusing to accept DOD’s censorship by printing Claus’ name.

Joshua Claus, Joshua Claus, Joshua Claus.

Froomkin aptly describes DOD’s ridiculous demand that reporters not report on a name that is in the public domain as a demand for amnesia:

Jack Newfield, the legendary investigative reporter, once wrote that if government officials had their way, journalists would be “stenographers with amnesia.”

The “amnesia” part, at least, was generally considered a bit of an exaggeration.

But now, the Pentagon has banned four reporters from covering the military commissions at Guantanamo Bay, Cuba, because they refused to forget something that had already been reported to the world.

But DOD claims it is doing something different: making sure that Joshua Claus, whose role in the Dilawar killing has been documented, is not connected to this week’s hearing.

Pentagon officials said it didn’t matter that Claus’ name was already widely known.

“If his name was out there, it was not related to this hearing. Identifying him with Interrogator No. 1 was the problem,” Lapan said.

Which really ought to encourage those of us who would like to confound DOD”s attempt at censorship to focus on what new information can now be connected to Joshua Claus: specifically, that the same guy involved in the killing of the Afghan taxi driver Dilawar also implicitly threatened Omar Khadr with rape.

Both Steven Edwards and Michelle Shepherd (who are both among the journalists banned on Thursday) previously reported that Claus conducted most of Khadr’s interrogations at Bagram. Both raised the question whether Khadr was subjected to the same kind of abuse Claus used on other detainees, most of all Dilawar, who died after abuse in US custody. But in his on-the-record interview with Shepherd, Claus insisted that Khadr wasn’t subject to any of that same kind of abuse.

In the first interview he has given since leaving the army, Joshua Claus told the Toronto Star that he feels he has been unfairly portrayed concerning his work as an interrogator at the U.S. base in Bagram, Afghanistan.

“They’re trying to imply I’m beating or torturing everybody I ever talked to,” Claus said by telephone yesterday. “I really don’t care what people think of me. I know what I did and I know what I didn’t do.”


Claus was 21 at the time, and the assignment was his first deployment. But he said yesterday it was unfair to compare his interrogation of Khadr to that of Dilawar or the other detainees.

“Omar was pretty much my first big case,” Claus said, noting that they’d talk for six to eight hours a day. “With Omar I spent a lot of time trying to understand who he was and what I could say to him or do for him, whether it be to bring him extra food or get a letter out to his family … I needed to talk to him and get him to trust me.”

He said he was trying to find a “symbiotic relationship” with Khadr, who was 15 at the time of his capture.

Claus wants us (or at least wanted us) to believe a “symbiotic relationship” existed between him and Khadr. And that’s, frankly, how DOD would like it to remain, with Claus’ denials that Khadr was subject to any of the same abusive treatment that Claus used on others.

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